Former Leaders of New Alliance Party Have Become Leading Opponents of Ballot Access Reform

Government-printed ballots in the United States were first created in 1888, and almost from the start, opponents of new and minor political parties started manipulating the ballot access laws to keep certain parties off the ballot. The first such instance was in Nevada, when the 1893 legislature increased the petition requirement for new parties and independent candidates to 10% of the last vote cast, in a vain attempt to keep the Peoples (Populist) Party off the ballot.

But in over a century of struggle to avoid monopolization of the general election ballot to just the two major parties, there has never been a pressure group that worked in favor of restrictive ballot access laws, until very recently. Leaders of the former New Alliance Party, who have renamed themselves several times, now call themselves IndependentVoting.org. They hold themselves out as the leaders of independent voters, but they have become a pressure group working to limit choices on the general election ballot to just Democrats and Republicans.

IndependentVoting fund-raising pitches say that the organization’s goal is to enable independent voters to vote in major party primaries. However, the bulk of IndependentVoting’s activity during 2010 has been to advance the goal of switching California to the top-two system. This is ironic, because California had already been a state (ever since 2001) in which independent voters were already able to vote in all major party primaries for Congress and state office.

Compared to Republican and Democratic voters, independent voters are the most supportive voters for minor party candidates. For example, see this poll taken in the North Carolina U.S. Senate race in 2010, which shows that Libertarian Party nominee Michael Beitler received the support of 12% of independent voters, whereas he received the votes of only 3% of the major party voters. Other polls that give this much detail, from other states in 2010, showed similar results; see this example from California. Thus, when a new election system appears that removes minor party candidates from the general election ballot, that new system disproportionately injures independent voters more than it injures any other voters.

The California top-two proposal does more harm than just removing minor party candidates from the general election ballot. It says write-ins can’t be counted in November for Congress and state office; it makes it far more difficult for a minor party to remain on the ballot for President; it discriminates against independent candidates by not letting themselves use the label “independent” on any ballot; and it vastly increases the number of signatures to get on the primary ballot for minor party candidates who don’t pay the filing fee. Notwithstanding all these harms done to voting rights, IndependentVoting enthusiastically supports the top-two law in California, and expresses open hostility toward minor parties. For example, see this cartoon, carried on a blog associated with IndependentVoting.

IndependentVoting communications have been dishonest. IndependentVoting has repeatedly asserted that independents were not permitted to vote in major party primaries in California before the adoption of the top-two system. IndependentVoting has also recently inaccurately claimed that the California Supreme Court upheld Proposition 14, when the truth is that the court merely declined to expedite the case. IndependentVoting also fosters confusion, by constantly referring to the California top-two system as an “open primary”.

Members of the New Alliance Party were once defenders of voter choice in the general election. The New Alliance Party won ballot access lawsuits in Alabama, California, Florida, Massachusetts, Michigan, North Carolina, Texas, and Washington. Activists from the New Alliance Party wrote the first bill in Congress to outlaw restrictive ballot access laws, introduced by Congressman John Conyers in 1985. They worked hard for that bill, which was re-introduced in 1987 and 1989. In 1990, the Rainbow Lobby, associated with the New Alliance Party, managed to get 40 co-sponsors for the bill, although it did not pass. The New Alliance Party also filed many lawsuits against the Commission on Presidential Debates, trying to end the Democratic-Republican monopoly on presidential debates. These cases did not win, but they came closer to winning than any other lawsuits on this subject, and one of the New Alliance debates lawsuits won a procedural victory on standing to file such lawsuits.

Minor parties are hoping to persuade the U.S. Supreme Court to hear cases against the Georgia and Hawaii ballot access laws, and are also hoping to persuade the U.S. Supreme Court to hear the case against Connecticut’s discriminatory law on public funding of candidates, which requires independent candidates to submit a petition of 20% of the last vote cast (in addition to raising the same number of small campaign contributions that major party candidates must raise). IndependentVoting has shown no interest in supporting these efforts, and judging from the cartoon, supports the Connecticut discrimination against independent candidates in the matter of public funding.

Independent voters in California have been able to vote in major party primaries for Congress and statewide offices since 1998. Between 2002 and 2010 this was at the whim of the major party, and of course did not necessarily extend to presidential primaries. Between 2002 and 2010 if an independent voter did vote in a major party primary he was restricted to voting for candidates of that party. He was not permitted to maintain his independence.

From 2012 forward, an independent voter will be able to vote for any candidate in any election, regardless of the party affiliation of the candidate.

California election laws were extremely discriminatory against independent candidates. There has not been an independent candidate for statewide office since 1978. If someone in their 60s were counting independent congressional candidates over their voting lifetime (close to a 1000 races), only in 2010 would they have needed to remove their shoes.

Under the Top 2 Open Primary, there are no partisan nominations, and thus there are no candidates whose nomination was independent of political parties. The reason for requiring a bazillion signatures for independent candidates was to demonstrate that the candidate was being nominated by a party-sized body of voters independent of any party.

Under the Top 2 Open Primary, a candidate may have the party preference on their voter registration placed on the ballot. A voter who does not have a party preference, may have that lack of preference indicated on the ballot.

Richard Winger makes an unnecessary and unwarranted distinction between primary and general elections, they are two stages of the electoral process. From California’s experience with the blanket primary in 1998 and 2000 we know that voters were more supportive of minor party candidates in the primary election, than in the general election.

California may not be able to legally maintain their extremely high petition barriers for independent presidential candidates now that they have been slashed for other statewide elective offices (by over 99.9%). And they really have no need to.

Several of Jim Riley’s statements in #6 are factually incorrect. He says there have been no independent candidates for statewide office since 1978, but independent presidential candidates got on the ballot in California in 1980, 1988, and 1992 (the one who got on in 1988 was Lenora Fulani). There were also independent gubernatorial candidates on the ballot in the 2003 special election, but admittedly that election had different rules.

Jim Riley says under California’s top-two system, any candidate may have a party preference on the ballot. The state of California and the counties do not agree with him. He also says that any voter can vote for anyone in any election. Both statements are not true. The reason he says these things is because he interprets Prop. 14 and its implementing language differently than California elections officials. It would be more accurate for him to say that if the elections officials were doing their job differently, then write-ins would be counted, and then any party label would be on the ballot. But he is not in charge of California election administration, and the way he interprets the law is not how the government interprets it.

There is only one election for federal office, in all states, because Congress said so, in 1875 for congressional elections and in 1844 for presidential elections. An “election” is an event at which someone can be elected. No one can be elected in California’s June primary for partisan office; even if someone gets 100% of the vote in June, that person is not elected.

“Top-two” is an evil system designed to end free elections in America.

“Top_two” creates a one-party state where only one party is allowed to run candidates. That single state-controlled party will hold a single primary election and will choose two candidates who will run against each other in the general election. No independents or outside parties will be allowed to have any candidates in the general election. Only the two candidates from the one, state created and state controlled party will be allowed access to the ballot. Only the one, state created and state controlled party will be allowed to have a primary. Only candidates and voters who are part of the one, state created and state controlled party will be allowed to choose who is elected.

“Top-two” is a recreation of the soviet election system. One party only. The end of free elections. The end of liberty.

It is no surprise that f a s c i s t s from the old New Alliance have joined with their fellow travellers such as Jim Riley who are seeking power and pelf by perverting the political process for private purposes.

#7 Richard Winger used the term “state office” while I used the term “statewide office” to refer to officials of state government. We both use congressional office to refer to both representatives elected by district and senators elected statewide.

Richard Winger realizes that independent voters have not been able to consistently vote in major party presidential primaries which is why he continues this senseless quibbling over the term “state office” and “statewide office”. It is in fact true that in 1998 and 2000, independent voters were able to vote in major party primaries. It is not correct that this practice began in 2001.

While independent voters since 2002 have been permitted to vote in major party primaries, it is only at the whim of the political party, and voters are limited to only candidates of one party. It is (or was) a bait and switch tactic.

The briefs filed by the counties in Field v Bowen say that they’ll do whatever they are told to do, and have implicitly let the State of California represent them. The briefs for the State say that the law stands for itself, and not the misinterpretations by the plaintiffs’ lawyer. The intervenors brief explains why if the plaintiffs’ contentions are correct it would have been impossible for a voter to affiliate with a non-qualified party prior to January 1, 2011. We know that is simply not true.

The California Constitution takes precedence over California statute, and if there is an issue of the interpretation of SB 6, then it should be interpreted in a manner that fulfills the objectives of Proposition 14. If California did not permit all candidates to have their party preference on the ballot, then it would be making a distinction on the basis of party preference. That is, it would be having regard for the party preference of some candidates, which would interfere with the right of voters to vote for any candidate regardless of the the candidate’s party preference. State law must be interpreted in a way that fulfills the Constitution. There is simply no basis for making a presumption that the legislature would deliberately contradict the constitutional amendment when writing the implementing statute.

The preamble to Proposition 14 said that existing voter registrations were to be directly converted to party preferences. SB 6 says the same thing. Do you have any information that the Secretary of State or the county election officials intend to do anything different?

Has any election official in California ever denied a candidate in a Top 2 Election the right to have their party preference as indicated on their voter registration affidavit appear on the ballot?

The US Constitution says that each State may prescribe the manner by which representatives are elected (subject of course to an override by Congress). This includes determining how candidates qualify for placement on the ballot (which Congress requires use of). Since the 1940s, the US Supreme Court has determined that a primary election for representative is an “election” at least for purposes of the 14th Amendment. Congress has recognized the existence of primaries through its regulation of congressional financing. Congress would not have the authority to regulate primary financing unless it were part of the process by which the voters of the several States chose their representatives. That some States exclude some candidates from the November ballot for losing partisan primaries, and some States exclude some candidates from the November ballot for performing relatively poorly in a open primary is non-significant.

Therefore, the November date only refers to the date on which a final choice is made (subject to various contingencies such as majority requirements, inability to conduct an election, etc.)

Congress does not have the authority to require elections to determine who is appointed a presidential elector. They only have the authority to set the time of appointment. There has been a set time for appointment prior to every presidential election. The 1840s legislation restricted this time to a single date.

If California wanted to use Top 2 for purposes of electing presidential electors by district, they could, with two elector candidates in each district being nominated in June. If California wanted to have an intermediate body appoint the electors (similar to the system used in Tennessee it is early presidential election), but where this intermediate body was elected, California could hold the election for its members prior to November. The intermediate body would be required to meet and make their appointments in November. If California were to have the legislature appoint the electors, the election of the legislature two years earlier would largely determine the result.

Any estimate on when the CA state courts get done with the top 2 candidate label stuff in primary and general [secondary] election ??? — with the poor suffering SCOTUS folks having to hammer down some more folks in one more top 2 appeal.

Personally, I hope “top two” will be struck down by the courts. But some of you are acting like the world is coming to an end if it stays in California. It can backfire, as it did in Louisiana in one of the first gubernatorial elections they held (under the Open Primary), as Democrats there were attempting to destroy the growing Republican Party. In one of the 1st elections under the Open Primary, a GOP candidate for Governor won. Today, the GOP dominates state-wide elections in Louisiana – with the Open Primary elections. I bet the few Democrats behind the Open Primary law still living wish they had never adapted it.

As bad as “top two” is, has anyone ever stopped to think, for example, if a Libertarian candidate for an office really “worked their butt off” and finished in the “top two” he or she would be on the General Election Ballot with only either a Democrat or Republican as the opponent.

Even with “top two,” 3rd parties (and independents as I understand – correct me I’m wrong, Richard) can still field candidates. At least in the Primary these candidates can get their message out, which is about all they accomplished in the General Election under the old system.

There are 775 instances at which a minor party member ran in either a top-two primary, or a blanket primary, and in which there were also at least two major party persons running. Out of those 775 instances, there are only 2 cases when a minor party person placed first or second.

Voters aren’t paying attention to minor party candidates in primary season. Instead they are preoccupied with which major party person will advance. Audie Bock, the Green elected to the California legislature, came in 3rd in her blanket primary, but because blanket primary rules are kind, she was permitted to run in the next round anyway, and she was elected.

How many instances in the United States in which a minor party candidate ran in a regular general election with two major party candidates on the ballot and also placed first or second? Would that ratio percentage be about the same as the 2 out of 775?

My point is that we take what we have and make the best of it. If voters aren’t paying attention to minor party candidates in primary season, what statistical evidence proves they pay any more attention to them in a General Election?

What 3rd party and independent candidates need to do is get off their butt and generate enough publicity about their candidacy that the voters WILL pay attention to them – whether in a “top two” Primary or in a regular General Election.

We have a version of Top-Two in Washington where a conservative independent won a seat on the Cowlitz County commission defeating an incumbent Democrat. Indeed, Misner worked his butt off and his campaign benefited from many creative eye-catching signs.

Also, there was a candidate running in my 19th LD – Tim Sutinen “prefers” LOWER TAXES party. Of course there is no party but this tag was a great representation of his conservative values. He made good use of that cue for voters next to his name on the ballot. He last ran a few years ago as Republican and the State House Republican Caucus(1) didn’t give him a dime because the leadership had written off the district to Democrats. (And we’ve had bi-partisan redistricting since 1990). So this candidate was basically an independent but he used the rules to send voters an honest message ON THE BALLOT itself! That’s a good thing about WA Top-Two. Sutinen lost but that’s probably due to making both house seats in a house district its own separate race.

Washington’s system is way better than in California. California needs to move its primary from June to August, count absentee ballots and also allow minor parties names or even cues on the ballot and not “no party preference” – or something like that.

And of course the terribly parsed “prefers party” must be struck down in the upcoming trial. This wrecking ball against private association needs to go. Let parties choose nominees and let the voters choose who the best candidates are in the primary and general.
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(1) Meet the new boss “prefers party” lovers! That’s why I find “prefers party” so offensive. It goes after the local volunteers and grassroots folks while does NOTHING about the money laundering machines / Major Party Caucus Committees that control the legislature.

While “An Alabama Independent” is correct in his (my guess is that the writer is a male) general thrust – and is a person whom I agree with on many things – that we voters of the Golden State must face reality and work within the system as it is; there is no way that any palatable lemonaide can be made out of the rotten lemons that comprise the “top-two” method of organizing elections. We must also continue to fight within the court system to get rid of, or at least modify for the better, this new system in California. We must also try to have the state legislative bodies overturn or change these new laws resulting from Proposition 14.

The “top-two” system is a monster and is is causing many problems for the voters, election officials, and – especially – independent and/or “third party” candidates. I am including below an important message that I forwarded yesterday to my contact list:

FYI from Phil.

Philippe L. Sawyer, Member:

Sacramento County Central Committee,
Peace and Freedom Party of California

For over a hundred years, people who believe that the right to run for office, and the right of people to vote for candidates of their choice, should not be restricted based upon the wealth of the candidates or their supporters. In 1909 the California Socialist Party lost the lawsuit Socialist Party vs. Uhl in its effort to do away with filing fees to run for public office in California in the State Supreme Court. Even though the Socialist Party lost that decision, the court held (Independent Progressive Party vs County Clerks, 1948, 31 C 2nd 549) that “Throughout the court’s opinion in the Uhl case [Socialist Party v. Uhl, 155 Cal. 776 (103 P. 181)] it is emphasized that the power of the Legislature to restrict the right of suffrage is limited to prescribing tests and conditions for participation in primary elections which are reasonable and not arbitrary.” [Emphasis added]

John Haag – PFP Founder

In Haag vs California the California Peace & Freedom Party challenged the filing fees again in 1970, with John Haag of Venice, candidate for Lieutenant Governor, as the lead Plaintiff. The State Supreme Court turned PFP down.

In 1972, PFP started a new effort with Blaine vs Brown. John Blaine of Mount Washington (LA 90065). Due to a federal court injunction in Choate vs. Brown, all of the legislative and congressional candidates in the suit were able to run that year without paying the filing fees, but that left Don Paul Lubin, a PFP candidate for the non-partisan County Supervisor seat held by Pete Schabarum, as the only candidate left, so the PFP suit morphed into Lubin vs. Panish.

In the trial court, the runner-up for the Democratic Party nomination for Lieutenant Governor in 1970, Judge Robert A. Wenke, made the not so veiled racist/sexist remark that “any welfare mother who can’t afford $200 to run for Assembly is obviously a frivolous candidate.” Neither Wenke nor then-Secretary of State Edmund G. “Jerry” Brown, Jr., the defendant inBlaine vs. Brown, revealed that Wenke was a campaign contributor to Brown of $200 and an airline ticket for the 1970 election. Wenke’s decision against PFP came about a week after the U.S. Supreme Court decided in Bullock vs Carter 7-0 (two justices abstaining) 405 US 134 (decided February 24, 1972) that Texas’s filing fees were unconstitutional even though you could get on the ballot as an independent without paying the fees or have your write-in votes counted without a filing fee. In California, neither of those options existed.

Don Paul Lubin

Don Lubin’s case went to the California Court of Appeals and the State Supreme Court to no avail. Not a single judge even wanted to hear the case. Related litigation for injunctions went before the U.S. District Court and the 9th Circuit Court of Appeals. Only 9th Circuit Justice Walter R. Ely Jr. saw the case for what it was, but was outvoted 2-1. When California Deputy Attorney General Henry G. Ullerich argued that filing fees dissuaded frivolous candidates from running for office, Ely inquired of him, “tell me counselor: how do these filing fees dissuade frivolous millionaires from running for office?” Ullerich had no answer.

With the case pending in the U.S. Supreme Court, we brought a new lawsuit, Jan B. Knaizansky-Tucker (and David Noble) vs Brown, which got an injunction from the 9th Circuit against the enforcement of the filing fees. Yes by the way, that was me while I was 18 years old and running for State Senator against Alan Robbins.

With a brief signed by the ACLU’s A.L. Wirin and Fred Okrand and signed and argued by Marguerite “Marge” Buckley and printed by Agency Lithograph with an Allied Printing Trades Union Label, nine justices of the Supreme Court decided 9-0 (nine to nothing) that California’s filing fees were facially unconstitutional.

So, the legislature eventually enacted a new filing fee law that allows candidates to get more signatures to get on the ballot without a filing fee or a proration of fees by the number of signatures.

Fast forward to this past week. With new election rules for the passage of Proposition 14 by the voters, the way that things worked out for me attempting to file in the 28th State Senate and Carl Iannalfo trying to run in the 17th State Senate district for special elections, instead of the old requirement for PFP candidates of 10% or 150 signatures whichever is less, with months to get them, the rules became 3,000 signatures with 3 days to get them for me and 2 days to get them for Carl.

Does that sound “reasonable and not arbitrary”? [Emphasis added – PLS]

#14 California has party registration for voters. A voter must sign their voter registration affidavit indicating all the information on it is truthful and correct, subject to perjury charges. So the presumption is that a voter has entered into political association with like-registered voters.

If a voter then becomes a candidate, he can then have his party affiliation appear on the ballot. This is not dissimilar to how a doctor can have “Doctor” appear on the ballot.

California also requires the Secretary of State to publish on its website the 10-year party affiliation of candidates. So if a candidate had only recently changed their party affiliation there would be public knowledge of that.

Voter pamphlets and sample ballots are distributed to voters before each election. The 6 qualified political parties may have their endorsements appear on the sample ballot.

In California, voters may register with a non-qualified party. The state simply records the registration, and totals it among miscellaneous other parties, which is a distinct category from Declined To State/No Party Preference. If the party decided to become a qualified party, it files paperwork with the State, and then the voter registration records are scanned to determine if there are sufficient voters registered with the party for it become qualified. But the voter registration with the party is valid whether or not the party seeks qualification.

A voter registered with a non-qualified may have that preference appear on the ballot.

Where were you in the early days and months of Proposition 14? I am in poor health, but fairly educated and I ‘test well’. I have heard nothing but ‘the present system is crud’ and then little or no criticism of Top Two. ‘With ‘friends’ like you (and I am an industrial strength fan of Ballot Access) guys — do alternative types need ‘enemies’?

Independentvoting.org has also done some good things recently too. I remember them helping Kathleen Curry in her lawsuits against the unequal treatment minor party and independent candidates receive compared to major party candidates.

As to #13, the main reason minor parties (and frequently independent candidates as well) run for federal and state office is because they feel that there is something terribly wrong with the ideas being implemented by the two major parties, and they want to explain that there is a better policy. Running for office in the general election season is an excellent way to spread ideas that otherwise might not get much circulation. There is a huge opportunity for a 2012 presidential candidate in the general election to make the case that it is wasteful and foolish for the United States to be fighting continuous wars in Asia. If that potential presidential candidate is skilled in his or her ability to communicate that idea, it will have tremendous political consequences even if the person comes in a distant third.

Concerning comment #22, the new requirement concerns petitions in lieu of the filing fee.

Concerning open primaries, if the chief goal of IndependentVoting is to let independent voters vote in major party primaries, it makes no sense at all for IndependentVoting to attack minor parties. Minor parties can be valuable allies. For example, the Oklahoma Libertarian Party won a ruling in the 10th circuit on April 6, 2004 that said Oklahoma (a closed primary state) must let all voters vote in the Libertarian primary. Effectively, the 10th circuit had just said that a party can insist on an open primary (at least for itself) even if the state mandates closed or semi-closed primaries. This was a huge gain for the people who believe that voters ought to be able to vote in any party’s primary. The decision was binding not just on Oklahoma, but on all the states in the 10th circuit, all of which are closed primary states. Unfortunately the US Supreme Court reversed this ruling in 2005. Nevertheless, IndependentVoting ought to recognize the Oklahoma Libertarian Party’s efforts. Instead they have never had anything to say about it, and now think it is smart politics to belittle the Libertarian Party and many of the nation’s other minor parties.

When you have only one primary for all candidates it is inevitable that that will become in fact a single party and operate as a single party with factions that seek to control the outcome.

Since the Single Soviet style party in California will choose two candidates, the most powerful faction will work to control both nominees of the single party. As a result of controlling both nominees, hey will control the state apparatus that controls the single party and the party will become a single, state controlled party with ever tightening restrictions on who can run and total control on who can win. If adopted in enough states, the end of Liberty in America will follow.

This is the inevitable result of the road that the F a s c i s t – S o c i a l i s t s who support these “top-two” laws have duped the voters into following.

“Top-two” must be repealed before it is too late. It’s sponsors and supporters must be revealed to the public for what they are: Evil men with evil intentions.

Is the Michael Chamness who sought to intervene in Field v Bowen, the Michael Chamness who ran for the Green Party Los Angeles County Council from Senate District 28 in June 2008?

Had the Supreme Court issued an injunction, and had he run for senate as he claimed he intended, and had he decided to not pay the filing fee, would he not have been required to collect 3000 in lieu signatures?

And even if he had paid the $900+ filing fee, wouldn’t he have had to collect 500 signatures to get on the ballot.

And if he did not disaffiliate from the Green Party 3 months before his declaration of candidacy, he could not run as an independent nomination candidate.

Had he sought to run in the November 2010 general election as an independent nomination candidate, he would have been required to disaffiliate with the Green Party before October 1, 2009; and collect 13,544 signatures.

Lenora Fulani is a nutcase and so is that lawyer that works for them for free, Kreski. They’ll try and sue anyone over anything and are completely out of their fucking minds. They have no power with independents. Fulani was already revealed as a racist, child abuser and cult follower of Fred Newman. Please…stop giving these people any publicity, it only makes them believe their delusions even more

As I wrote initially, I hope the “top two” in California will be eventually rejected by the courts. Still, as I also pointed out earlier, the biggest problem is that most 3rd party and independent candidates are lazy. They want a ballot where maybe there will be only 2 other opponents at most, and they can “inherit” the support of the opposition voter who doesn’t want to vote either Democratic or Republican. In many ways they are the “welfare queens” of politics – wanting something for nothing.

Again, I say, “get off your butt,” do something to draw attention to our candidacy, as #14 pointed out “where a conservative independent won a seat on the Cowlitz County (Washington State) commission defeating an incumbent Democrat. Indeed, Misner worked his butt off and his campaign benefited from many creative eye-catching signs.”

As I’ve said many times and I will continue to state it, “3rd partisans and independents are their own worst enemies.”

OK, Alabama independent. When are you going to put your theories to a test? When are you going to run for public office again? I know you ran as the American Party nominee for Florida Agriculture Commissioner in 1974, in a race in which you were the only opponent to the Democrat. You got 302,650 votes, 21.77% of the total. But that was 36 years ago. Time to try something again.

#22 In California, there was little relationship between in lieu of petitions, and petitions to qualify for the ballot, other than in lieu of signatures can be used to also qualify for the ballot.

For state senator, the filing fee is currently around $950 (it is based on a percentage of the salary, and has actually been reduced a bit because legislative salaries were cut).

In lieu of signatures for state senator are 3000 from any voter. Since a candidate may combine in lieu of signatures to offset the filing fee, each in lieu of signature signature was worth about 30 cents.

California had a special rule for candidates seeking the nomination of a minor party. They could collect in lieu of signatures from 10% of party members, with a cap of 150. So a minor party candidate could collect 3000 in lieu of signatures from about 400,000 registered voters (varies by senate district) or collect 150 in lieu of signatures from perhaps 2000 registered party members in the district.

Since there are no longer party nominations for state senator, all candidates are placed on equal footing before the voters, and must collect 3000 in lieu of signatures from the electorate just like every other candidate or pay the filing fee.

California also has high in lieu of standards for non-partisan offices, such as county supervisor. Since these are non-partisan offices, no one gets a special deal, even if they happen to be registered with a minor party.

So the fundamental problem is that California makes it more cost effective to collect cans from the side of the road, than signatures from voters. That is the real issue that needs to be addressed.

Prior to Proposition 14, partisan candidates needed 40 signatures in order to run for state senator. An independent candidate in Senate District 28 would have required 13,544. Under Proposition 14, all candidates require 40 signatures. That is a reduction of 99.7%. For statewide partisan offices the reduction is even more.

For special elections, the requirement for independent candidates was reduced to 500 (in a few weeks). But even that is now 40, as all candidates are on equal footing.

“Under Proposition 14, all candidates require 40 signatures [to run for state senator].”

So, does this mean that anyone who meets the filing fee requirements, and gets a measly 40 signatures on a petition to qualify for the ballot, can have his or her name placed on the primary ballot for state senator?

That is really not a correct statement that you made. There are times (indeed, most of the time) when no matter how hard we work, we can get very little traction. Like you, I do not like to hear a lot of whining about the playing field not being level. Nevertheless, that is the reality of the situation and it is helpful if we are cognizant of that fact from the beginning of our campaigns.

This has been the case in the past for the non-partisan Superintendent of Public Instruction, and this was also true of candidates for party nomination.

So in 2010, if someone were seeking a partisan nomination for governor, they would require 65 signatures. If someone had sought an independent nomination for government (this is a hypothetical since it last happened in 1978), they would have needed 173,041 signatures.

Richard: When I retire from the job I currently hold, I just might run again. Who knows what is around the corner. But like you wrote, my last foray was 36 years ago. A little older (and not as healthy) as I was then.

I have found my working for ballot access reform can do more for the 3rd party movement than my running for office again. I hope to soon (in a few months) be launching a website primarily aimed at working for ballot access legislation in Alabama.

If we can obtain a better access law than we currently have, this will be worth more than a dozen candidacies on my part. Stay tuned.

Thanks for those clarifications, guys. Now I would like to ask hypothetically, what are the implications for political practice in CA with ballot access rules making it so easy to get one’s name on the ballot?

IMHO, the lawsuit that gets so much attention on this blog has everything backasswards. The focus here is on the wrong end of the new Prop 14 system. Rather than blaming Independents.org for itty-bitty stuff like the loss of write-ins in the general elections, this blog’s space could be used to celebrate the huge opportunity for third parties opened up at the other end of the Prop 14 system.

The front end of Prop 14 opens the election process up to all comers. Parties that could not qualify under the old rules now have equality at the starting point. If activists understood the opportunity given them, we could see Socialists, Tea Partiers, Prohibitionists, and Pot Legalizationists with seats in the Senate and Assembly in just a few election cycles. Surely there are districts where Libertarians and Greens, maybe even PFP, candidates could win. Prop 14 has the potential to produce a multi-party legislature in Sacramento.

This is one of the implications for political practice in CA with ballot access rules making it so easy to get one’s name on the ballot.

In the past, party membership provided an advantage to anyone who wanted to have their name on the ballot. The advantage also became a political debt. But under Prop 14, that advantage is gone, and ballot access is easy for any individual, with no political debts to a major party. This is a huge change in CA politics. Because party control at this point has been exploded, all hopefuls in the races for an Assembly or Senate district, now start from a position of equality.

All sorts of third parties will easily have one of their candidates on the ballot. That means they are in the fight, and not on the sidelines like before. They can focus their efforts and resources in districts where their candidate has the best chance of becoming one of the top two. As third party candidates win, and go to Sacramento, CA will develop a multi-party legislature. Third party success will breed more third party success, and the one-party domination of the legislature will soon die from a thousand cuts as multi-parties form coalitions and alter the balance of power.

This is just one practical implication of Prop 14. Isn’t it worthy of celebration?

Bill K

Prop 14 system: 1st get name on ballot; 2d get elected one of top two; 3d get elected out of top two.

Bill, in theory, everything you say makes sense. But when one looks at what actually happens in the two states that have used top-two, one sees a different picture.

In Louisiana, which has used top-two in state elections since 1975, no minor party member ever placed first or second in the first round, except in instances when only one major party member ran. And elections which are so boring and predictable that only one major party member runs give little opportunity for a minor party victory.

Furthermore, you seem not to have noticed that Prop. 14 makes it far more difficult for the members of the American Independent, Green, Libertarian, and Peace & Freedom Party members to even run in the primary. Instead of opening up the primary, it has shut it down, for members of those parties. Before they didn’t need a filing fee if they obtained 150 signatures; that’s all gone now.

The California county election officials are expecting as sharp decrease in the number of candidates who file for Congress and state office, as a result of Prop. 14. This is based partly on what happened in Washington state, which used an open primary in 2004 and 2006, but top-two ever since. Whereas there were over 40 minor party members who filed for the Washington state primary in 2004, there were only about 5 who did so in 2008, and even fewer in 2010. By “minor party”, I mean a member of an actual organization, not whimsical labels by individuals.

Finally, you also don’t seem to have noticed that members of unqualified parties may not put their party label on the primary ballot, nor can independent candidates have the label “independent”. And on top of that, Prop. 14 makes it far more difficult for parties to be recognized, by requiring them to have over 103,000 registered members. So they lose qualified status, lose the ability to list a presidential nominee on the ballot, and their members who run for office are forced to be labeled on the primary ballot as people without a party preference.

#41 There was precisely ONE non-Democratic/Republican candidate on the legislative ballot in Washington in 2006. It was a tactical decision by the Libertarian Party in Washington not to run for the legislature in 2006. It is dishonest to blame that on Top 2, because in 2006, Top 2 was still under the extraordinary and premature injunction by the district court.

(2) When the statutes are changed to implement a constitutional change, the statutes should be read as implementing the constitution, and not as frustrating the constitution.

(3) It was the legislative intent of the People of California in passing Proposition 14 that existing party registrations “declaration of intent to affiliate with Party X at the next primary” be converted to “disclosure of party preference”. SB 6 makes precisely that change.

From this we can presume that a voter’s party preference is what he says it is on his voter registration. A voter registration affidavit is signed by the voter to indicate that it is truthful and correct, subject to prosecution for perjury. If you think some voter’s party preference is not truthful and correct, and there was intent to deceive, inform your local DA and they can prosecute.

Party affiliation in California has always been aspirational. Intent to affiliate at the next primary assumes that the party will be qualified to hold a primary. Even when a party formally organizes, they are not required to inform the Secretary of State. It is only when they decide to attempt to become qualified that they file with the SOS, who then directs the counties to count all the voters who had registered with the party in the past, without regard to when such party registration was made. Party registration in California may only be changed by the voter, therefore if a voter registers with a non-qualified party, he is affiliated with that party unless the voter changes it or the registration lapses.

If it turns out that the party is not qualified at the next primary, then the voter’s aspiration transfers to the next primary. Just because certain privileges are associated with voters affiliated with a qualified party, does not mean voters affiliated with a non-qualified party are not legitimately affiliated with that non-qualified party. And of course voters have a 1st Amendment right to prefer less popular parties.

Voters registered with qualified parties are tabulated separately. Voters registered with non-qualified parties are aggregated together, except for those attempting to qualify, and separate from those who Declined To State/No Party Preference. But simply because voters who prefer the Coffee Party and the Natural Law Party and Social Action Party are lumped together on some spreadsheet, does not mean that they have the same party preference, nor that the counties do not have records of their actual party affiliation.

SB 6 explicitly defines a candidate’s party preference to be that which he has disclosed on his voter registration. Further a candidate who files for a voter-nominated office must use the party preference from his voter registration, if he uses anything – and is forbidden from modifying his voter registration between the primary and general elections.

Your interpretation of SB 6 is erroneous because it violates the California Constitution, and would frustrate the purpose of Proposition 14. Your interpretation would divide voters into two classes based on whether they preferred a qualified party or preferred a non-qualified party. This would have the effect of having regard for the party preference of the voter since it would prevent them from knowing the party preference of candidates who shared their preference, and thus violate the intent of Proposition 14 that no distinction be made on the basis of voter’s party preference.

Jim, every time you mention the 2006 election in Washington state, to make the point that the minor parties weren’t very active that year, you neglect to say that the Libertarian Party and the Green Party put their energy into the U.S. Senate race in Washington that year. Libertarian Bruce Guthrie got 29,331 votes, and Green nominee Aaron Dixon got 21,254 votes.

#48, In my comment #43 I noted specifically that it was a tactical decision by the Libertarian Party, who went from 28 legislative candidates in 2004 to zero in 2006, and that drop could not be attributed to the implementation of Top 2. There was only one Green Party legislative candidate in 2004.

If it was the Pick-A-Party primary that motivated the large number of Libertarian legislative candidates in 2004, it somehow did not motivate them in 2006.

I think it is an accurate to say that the Open Primary has resulted in a significant increase in non-D/R legislative candidates, particularly independent candidates.

In the 2008 Lt.Governor open primary, the Constitution Party preferring Arlene Peck received 48,887 votes, which was almost equal to the combined total of votes for Guthrie and Dixon in 2006.

Despite Mr. Riley’s. and others, arguments, it all comes down to one thing. One vote. The November election is where people are elected to office. By closing the November election to only two candidates, thrid parties and independents do not have direct access to the November vote except in the case when only one major party candaite runs, or when someone like Tancredo or Nader (as for instanceses) are on the ballot. A “top two system”, wether WA or CA, are closed systems that reduce voter choice and so reduce democracy. The rest is statistical and academic chitchat.

The Kelleher Winger exchange (comments 40 and 41)says it all. When Kelleher correctly points out that there are no ballot access downsides to Prop. 14, Winger reverts to his overall objections to the top two system, and they have nothing to do with ballot access. They have to do, as Kelleher notes, with the fact that, under top two, party candidates, major and minor, do not have a preferred position over the rest of us.

Thanks for chiming in, Harry. What you and Mr. Kelleher have in common is that neither of you appear to have studied how top-two works in the real world. You and I have talked about this on the phone. I said that Louisiana has 35 years of experience with a top-two system, and no minor party member ever placed first or second in Louisiana in all those thousands of elections, unless there was only one major party person running.

If the proponents of top-two were really interested in empirical research, the way Jim Riley is, they would do it. Instead their devotion to the top-two system is not based on facts, or the way the world really works. It is like a religion to them.

Out of respect for your knowledge, I won’t dispute what you say about the experiences in other states, such as LA and WA. But I will say this: the only thing that can prevent CA activists from realizing the possibilities given them by Prop 14 is their own concepts and attitudes. If all the activists read this blog and say “Oh shit! Look what we have lost. Nothing can be done,” then guess what? Nothing will be done.

In your third paragraph you seem to set up this argument: because 3d party candidates now have to pay a [nominal ($950)] filing fee, participation in elections is “far more difficult;” indeed, primaries for them have been “shut down.”

My message to activists is very different from yours. In my view, Prop 14 has delivered us to Libertarian Heaven.

From my POV, understanding the gift of Prop 14 requires a re-conceptualization of the old idea of “party.” Putting presidential elections and state wide elections aside, most CA elections are for state Senate and Assembly. Therefore, for these elections, the idea of “party” should be the party-in-the-district (P/D), and not the party-in-the-state (P/S). Every P/D can have its own candidate, because ballot access is open to all. Activists in each district can evaluate what is possible for them. They can do the traditional political activities of organizing and selecting their candidate in their district. There are many tactical possibilities for combining forces and beating major party candidates. The competition is open to all. These activities can be free of control by the central P/S organization; but that does not make the activities “whimsical.”

The party-in-the-state can still exist for such things as fundraising and defining their ideal agenda. The P/S can allocate resources and volunteers to districts with winning potential. They can abandon districts with little or no potential.

Its true, P/S has lost some of the old privileges of being “qualified.” But while privileges have been lost, tactical possibilities have been gained. In every battle, victory has costs. But to win a war you must quickly bury your dead, and prepare for the next fight. Regrets and recriminations only waste time and energy.

RE party labels
I have a little something to add concerning party labels to what Kresky says in his current HP post (see #51).

Prop 14 Second, sec. (c) states, in part, “At the time they register, all voters shall have the freedom to choose whether or not to disclose their party preference.”

Question: If the old legal status of “qualified party” is abolished for the purpose of ballot access by individuals, then isn’t it also abolished for the purpose of voter registration? Section (c) says the voters can declare “their party preference.” It doesn’t use the old distinction between “qualified party” and “no preference,” or “decline to state.” It leaves it up the registering person to say whatever they want – “THEIR party preference.”

Section (c) goes on to say, “Existing voter registrations, which specify a political party affiliation, shall be deemed to have disclosed that party as the voter’s political party preference unless a new affidavit of registration is filed.” The clause after “unless” seems to me to be saying that you can re-register and put down any party label you want, whether it’s a “qualified party” or not.

If I am correct, then folks can register to vote as “Socialist,” or “Lovers of Fabio,” or anything else. So what if its six guys in the “card party.” What business is that of the state? Registering to vote is an essential act of political expression.

Looks to me like Prop 14 already recognizes this 1st Amend freedom to state any party label. These party labels can be used when candidates sign up for the ballot, and the state will have to print them. So, what Richard said (in #41) is true only if you don’t re-register.

Thanks for the opportunity to make these points! Gotta go, more later,

#52, elections have many important functions. Election campaigns are how the people “talk to each other” about what government policy should be. There is no substitute for a vigorous election campaign.

If the only function of elections was to decide who should hold office, we would cancel 80% of all elections for Congress and state legislature, because no matter what election system is used, it is a matter of course that the same people get re-elected 80% of the time, if they are running for re-election. That is why the term limits movement was so popular.

#55, the California Attorney General, Secretary of State, and Association of California county elections officials, are in total agreement that members of unqualified parties cannot have their party label on the ballot.

Jim Riley reads the law differently than they do, but it doesn’t really matter how he reads it, because it is the state and county elections officials who are administering it. Also, the state and county officials are in agreement that no one will ever again be able to be listed on the ballot as an independent candidate. Jim Riley will probably chime in and say that it doesn’t make sense for anyone in the top-two system to be described as an independent. But the State Supreme Courts of Massachusetts and Minnesota have both ruled that “independent” is such a politically meaningful word, it would be unconstitutional to ban use of that label on the ballot.

Louisiana has a larger share of its legislatur­e elected as independen­ts than all but one of the 48 other states that have partisan elections. Last year, the House speaker pro tem was an independen­t, reflecting that independen­ts held the balance of power.

Louisiana’s version of top-two is far kinder than the California and Washington version. In Louisiana, the first election is an actual election. People are elected in the first round most of the time. So, people take the first round very seriously, and candidate debates are held prior to the first round. Another good thing about Louisiana’s version is that for Congress, the first round is in November, so the natural (autumn) campaign season matches the remainder of the U.S.

But Louisiana is worth talking about, because of the data it gives us. Similarly, the data from blanket primaries is relevant to talking about top-two, even though blanket primaries are far kinder than top-two, and do not limit choices in November.

#58 The Secretary of State in their answer brief in Field v Bowen said that the law stands for itself, and that they deny every interpretation by the plaintiffs that is contrary to the law.

Let’s go through the complaint point by point.

#40,#41. It is true that Elections Code 338 defines “party” as being a “qualified party”. But Section 338 is subject to Elections Code 4 which says that definitions such as 338 do not apply if the context demands otherwise.

In the context of voter registration, it makes absolutely no sense to limit “party” to mean qualified party. If a voter could not register with a non-qualified party, it would be impossible for a non-qualified party, to become a qualified party – except by the petition method, which might as well be considered impossible. It would make no sense for the Secretary of State to maintain statistics as to the numbers of voters registered with (1) each qualified party; (2) each non-qualified party attempting to qualify; (3) the aggregate of voters registered with other non-qualified parties; and (4) those not affiliated with any party (No Party Preference; Declined To State, prior to 2011).

The plaintiffs would have you believe that categories (2) and (3) no longer exist.

SB 6 also provided that existing registrations be recast. This is also the expressed legislative intent of the People of California in enacting Proposition 14. Richard Winger has acknowledged that for the last 98 years that some registrations in California were with non-qualified parties. Were these registrations purged on January 1st? Or are the plaintiffs making the bizarre claim that existing registrations with non-qualified parties remain valid, but that new ones are banned?

In addition SB 6 added Section 300.5 which defines a voter and candidate’s party preference as that disclosed on a voter’s registration.

Where the plaintiffs make their mistake is reading “party preference” as “preference for (Section 338) party”.

#42 SB 6 simply recast Section 2151(a) to say that a voter may disclose their party preference, from the previous language that a voter may declare their intent to affiliate with a party at the subsequent primary. Richard Winger will acknowledge that a voter could declare their intent to affiliate with a non-qualified party.

#43 Prior to SB 6, Section 2151(b) required the listing of all qualified parties on the registration form. This is not a change from previous law. It is absolutely bizarre that the plaintiffs would think this somehow implied a change in policy. SB 6 did add the requirement of a No Party Preference box on the registration form. However, it was the practice prior to SB 6 to have a Declined To State box on the registration form, so this is simplify a codification of existing process.

No doubt this relates to the perceived problem of some voters accidentally registering with the American Independent Party.

Section 2151 also changed the language describing the restrictions and limitations on the right to vote of voters not registered with qualified parties.

#44 SB 6 simply changed the presumption when a voter fails to check a box or write the name of party, that he has “No Party Preference” as opposed to not having a party affiliation.

#45 misrepresents what Section 8002.5 actually does say. Dutta’s careless use of “any” implies that a candidate’s party preference is arbitrary, when in fact 8002.5 makes clear that a candidate’s party preference (or lack thereof) is the same as on the voter’s registration.

8002.5(a) makes presentation of a candidate’s party preference on the ballot voluntary. California Election Code does not require a candidate to disclose his occupation, profession, or office to the voters. It is similar with a candidate’s party preference (or lack thereof). California can not compel speech. I’m sure Richard Winger knows this, but perhaps his lawyer does not.

#46 8002.5(c) would be better construed as a “candidate’s party preference does not imply endorsement by the party”. The use of “need” suggests that the plaintiffs are still clinging to the old paradigm, where parties run candidates, almost like one would run cattle.

#47 Is totally in error. 8002.5(a) requires a candidate to use the party preference (or lack thereof) on his voter registration, or to use nothing at all.

8002.5(a) does not “ban” use of the party preference on the voter registration it “requires” that it be used, if anything is used.

This is the same idea behind the designation on the ballot. One can’t claim to be a “Medical Doctor” unless one can actually demonstrate that they are. A candidate may not claim to have a different party preference than that which they have disclosed on their voter registration. The Secretary of State’s website will also have the 10-year history of party affiliation of each candidate. This is simply to ensure some level of reliability in the candidate’s expression of party preference.

Can their be anything more absurd than the claim in the last sentence of #47, “[t]hus, all candidates whose voter registration state a preference for a non-qualified political party will be banned from stating their desired party preference on their desired party preference on their declarations of candidacy”?

The plaintiffs’ lawyer makes the remarkable claim that voters may have a preference for a non-qualified party on their voter registration, and yet as a candidate may not. Yet Section 300.5 says that they are the same, and the whole point of 8002.5(a) is to ensure that they are consistent.

#48 SB 6 requires a candidate to use the same party preference (or lack thereof) on his voter registration, or to use nothing at all. This is the opposite of a “ban”.

#49 All candidates are required to use their party preference (or lack thereof) from their voter registration, or have nothing. It is erroneous to suggest that only some are “permitted” to do so.

#50 No candidate may designate that they have no party preference, unless that is consistent with their voter registration. The election of having a blank space is not the same as having no party preference.

#51 It is correct that a candidate may not change their ballot designation between the primary and the general election. The intent is that this information about a candidate is reliable and correct.

#52 In summary, the plaintiffs claim is erroneous.

#58 An injunction against implementation of SB 6 would not permit Jeff Mackler to run as preferring Socialist Action. Moreover, it would require him to collect a bazillion signatures merely to get on the ballot.

#59 An injunction against implementation of SB 6 would not permit Rodney Martin to run as preferring the Reform Party. Moreover, it would require him to collect a bazillion signatures merely to get on the ballot.

#61 There is no reason that California could not move the primary to September. It was in August prior to WWII when it was moved to June in order to be held in conjunction with the presidential primary. The presidential primary has since departed to early February.

Or if California would do like Louisiana they could hold the primary in October – Louisiana sends contingent ballots to overseas voters. When they regressed to using partisan primaries for Congress, this became really messy because they had to consider all the contingent possibilities based on which races had two or more candidates running for a party nomination, there would be a congressional primary. And if there were three or more candidates running for a party nomination there would be the possibility of a 2nd congressional primary. And then if there were any independents or candidates from more than one party, there was a general election. So there were really elaborate charts so the correct ballots would be sent. Now the same contingent ballots can be sent to all voters.

It would certainly be better for local non-partisan offices to have the election and possible runoff in close proximity.

At the same time, party officer elections should be moved to be coincident with the presidential primary, where voters are still segregated on the basis of party affiliation. This would remove the adulteration of all party-specific ballots from the primary.

SB 6 added Elections Code Section 2151(d) which provides for the conversion of existing voter registrations (this conversion took place on January 1, 2011).

It provides that a voter who had stated a party affiliation would be deemed to have disclosed a preference for the same party, unless the voter subsequently filed a new affidavit specifying a different party preference or no party preference.

And it provided that Declined To State (DTS) voters would be deemed to have Disclosed No Party Preference (DNPP), unless the voter subsequently filed a new affidavit specifying a party preference.

The legal presumption must be that the legislature provided for the conversion of all existing registrations and that it had divided those registrations into two classes:

(1) Affiliated with a party;
(2) Declined To State.

California election law makes a clear distinction between Declined To State voters and all other voters, thus all voters who were not Declined To State voters on December 31, 2010; as of January 1, 2011 have disclosed a political party preference, whether that preference is for a qualified party, or some other party. The only way for them to have No Party Preference is for them to file a new affidavit.

The only voters who have disclosed No Party Preference are those who were Declined To State on December 31, or who have filed a new affidavit since January 1.

#64 “if California would do like Louisiana they could hold the primary in October…” The MOVE Act requires primaries to be held no later than mid-Sept: ballots for overseas voters must be mailed out 45 days before the Nov election.

The MOVE act requires balloting materials to be available X days before the general election. Louisiana in effect sends out their general election ballot at the same time as they send the primary ballot.